Jury may hear Whole Foods uneven discipline claim

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A Whole Foods worker’s national origin discrimination allegations — including a claim that he was the only worker fired for a single incidence of overstaying a break — may be headed to trial (Diallo v. Whole Foods Market Group, Inc., No. 16-cv-9228, (S.D.N.Y., Jan. 9, 2019)).

Thierno Diallo, a former employee in the grocer's produce department who was born in Guinea, said that during his time there, team leaders "made frequent negative comments about people from Africa and sometimes called [him] names." They also laughed at his hope to become a supervisor, specifically noting that there were no African team leaders, he said. Diallo was eventually fired after taking too long to finish a lunch break; he sued, alleging that non-African team members routinely committed the same infraction without suffering the same consequence, according to the court document.

Diallo sued, alleging violations of Title VII of the Civil Rights Act of 1964. Whole Foods told the court that it considers time theft a major infraction warranting immediate termination and that it consistently enforces the policy. In the court document, the court said it was unpersuaded by the employer's argument, and continued: "These factual disputes require resolution at trial."

Dive Insight

Employers can't take into account a person's race, color, religion, sex, national origin, age, disability or genetic information when making decisions about discipline or discharge, according to the U.S. Equal Employment Opportunity Commission (EEOC). For example, the EEOC says, if two employees commit a similar offense, an employer may not subject them to different forms of discipline because of a protected characteristic.

When employers dole out discipline in an uneven fashion, discrimination and retaliation claims often follow. In Anderson v. Brennan, Postmaster General (Nos. 17-2162, 17-2170 (1st Cir., Dec. 14, 2018)), for example, the court found retaliation when an Asian-American postal worker found asleep on the job was fired while her white co-workers were not. The Anderson court noted that "sleeping on the job was not taken particularly seriously in the Boston PPO workforce."

Employers can avoid potential legal liability by having policies in place, making sure that all employees are aware of the policies and training managers to apply those policies evenly.